People v. Nasalga (12 Cal. 4th 784, 1996)

Opinion

WERDEGAR, J.

In 1992 the Legislature amended Penal Code section 12022.6, subdivisions (a) and (b), effective June 30, 1992, to increase the amount of the property loss required for a one-year enhancement from $25,000 to $50,000 and to increase the loss required for a two-year enhancement from $100,000 to $150,000. (Stats. 1992, ch. 104, § 1.) In this case we address the question of whether a person who stole $124,000 (§ 487, subd. (b)(3)) before the 1992 amendment of section 12022.6, but whose conviction was not final at the time the amendment became operative, is entitled to the benefit of the 1992 amendment and is, therefore, eligible only for the one-year enhancement. Pursuant to In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] and In re Kirk (1965) 63 Cal.2d 761 [48 Cal.Rptr. 186, 408 P.2d 962], we answer this question in the affirmative. We therefore reverse the judgment of the Court of Appeal.

Factual and Procedural Background

On January 13, 1993, defendant, Maria E. Nasalga, was charged with felony grand theft in violation of section 487, subdivision (1) (now subdivision (b)(3)). Pursuant to section 12022.6, subdivision (b), the information also alleged the victim’s loss exceeded $100,000. The charged offense was committed between April 25, 1990, and July 28, 1991. During that time defendant, who was employed as the office manager and bookkeeper for a property management company, deposited rent checks into her personal bank account. Pursuant to a negotiated disposition, defendant pleaded guilty to grand theft on February 25, 1993. As part of the plea bargain, she waived jury trial and agreed to a court trial on the truth of the enhancement. Defendant admitted taking $90,000 worth of checks, but the prosecution presented evidence the checks she took were worth $124,000. The court found she had stolen $124,000 worth of checks. On August 9, 1993, the court sentenced defendant to the lower base term of sixteen months for grand theft, plus a consecutive two-year enhancement under section 12022.6, subdivision (b), for a total state prison term of three years and four months.

At the time of defendant’s offense, between April 25, 1990, and July 28, 1991, section 12022.6, subdivision (b) provided in pertinent part: “If the loss exceeds one hundred thousand dollars ($100,000), the court shall in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted impose an additional term of two years.” Effective June 30, 1992, the Legislature amended the statute to increase the threshold loss required for the two-year enhancement from $100,000 to $150,000 and the threshold loss required for the one-year enhancement from $25,000 to $50,000. Even though, at the time defendant was sentenced, a theft of $124,000 made a defendant eligible only for a one-year enhancement, the trial court, without objection, imposed a two-year enhancement under the former version of the statute. The record is silent as to whether the parties knew the section had been amended between the time of the offense and the time of trial. We granted review to decide whether a defendant, whose conviction is not final at the time the law changed, is entitled to the benefit of the lesser punishment provided in the amended version of section 12022.6, subdivision (b).

Discussion

I

Defendant argues because section 12022.6 was amended prior to final judgment in her case, and because the amendment reduces the punishment for stealing $124,000 from two years to one, she is entitled to the benefit of the amendatory statute. She notes the statute contains no saving clause and that nothing in its legislative history indicates an intent to make its application prospective only. In support of her position, defendant argues this case is governed by In re Estrada, supra, 63 Cal.2d 740 Estrada), where we held “[i]f the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies.” (Id. at p. 744.) Defendant also asserts her case is factually identical to In re Kirk, supra, 63 Cal.2d 761 (Kirk), a case we decided the same day as Estrada. In Kirk, after defendant was convicted of issuing checks with insufficient funds, but before the judgment was final, the Legislature amended the statute that prescribed the punishment for the offense (§ 476a, subd. (b)), raising the dollar amount required for a maximum of one year’s imprisonment in the county jail from $50 to $100, and eliminating a state prison term for the crime. We held the defendant, convicted of issuing checks for a total of $75 without sufficient funds, was entitled to the benefit of the amendment, and could be subject to imprisonment only in the county jail and not to confinement in state prison. (Kirk, supra, 63 Cal.2d at pp. 762-763.)

The People maintain the absence of a saving clause is not determinative. They argue In re Pedro T., supra, 8 Cal.4th 1041 (Pedro T.), rather than Estrada, governs, and we should, therefore, deny defendant the benefit of the amended statute. At issue in Pedro T. was a statute temporarily enhancing punishment for vehicle theft. Although the statute increasing punishment was in effect at the time of the minor’s offense, it expired before his conviction was final, resulting in reinstatement of the former, more lenient sentencing provision. (See Veh. Code, § 10851.) In determining whether the minor could properly be sentenced under the temporarily increased penalty provision, we looked to legislative intent. Central to our analysis was the Legislature’s explicit statement that its purpose in enacting the experimental statute was to punish offenders more harshly: “ ‘The Legislature finds and declares that the rapid increase in motor vehicle theft has reached crisis proportions .... [T]he escalating problem of vehicle theft is nurtured by the lack of any serious deterrent to this crime. . . . [